IN THE SUPREME COURT OF NIGERIA
On Friday, the 15th day of March 1963
RAZAQ ADEMOLA BALOGUN ...................................................................... APPELLANT
SAMINU SALAMI & 2 ORS .......................................................................... RESPONDENT
Appeal by plaintiff:
Of the above provisions, which are mentioned in the judgment, it is enough for this headnote to refer to sections 10, 52(i) and 54.
Section 10 provides that a person may object to first registration on the ground that the land is family property or that it is subject to native law and custom, and that he has an interest in it, but, if that is not done, according to subsection (3) any claim which might have been so put forward "shall not after such registration be entertained under any of the provisions of this Act." Section 52(i) provides that all registered land shall be subject to:-
"the rights of every person in possession or actual occupation of the land to which he may be entitled in right of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed."
And section 54 provides that a registered owner who is a purchaser for value is not affected by notice of any unregistered estate, interest or claim affecting the estate of any previous registered owner.
A family house, which had been mortgaged by two members of the family who described themselves as owners in fee simple, was sold at auction by order of court, and the purchaser A.F. applied to the Registrar of Titles for first registration. The first defendant was in possession at the time of the auction, and shortly afterwards the family head sold a portion of the house to the second defendant, who went into possession. The family knew about the auction sale; they could have entered a caution under section 43 or opposed the registration under section 10, and the second defendant could have done likewise; but none of them took any steps, and A.F. was given first registration. He later sold to the plaintiff, who was registered and later sued the defendants for possession and an injunction.
The 1st defendant and the 3rd, both members of the family, pleaded that the plaintiff could not have validly bought any legal interest in what was family property; and the 2nd defendant pleaded that she had bought a portion and gone into possession.
The trial Judge observed that both A.F. and the plaintiff knew that the defendants were in possession but the plaintiff did not ask them what their interests were; he took the view that theirs were overriding interest, and on the Authority of Kabba v. Young, 10 W.A.C.A. 135, decided that the plaintiff's legal estate under his land certificate was subject to section 52(i) and that his claim failed.
On appeal the plaintiff submitted that Kabba v. Young did not apply to him as he was a subsequent registered owner, being a purchaser for value.
(1) The omission of the plaintiff to ask those in possession what their rights were did not enhance their rights; their nature and validity were matters for investigation.
(2) The rights claimed by the defendants were such as could have been put forward in opposition to the first registration; as they were not subsection (3) of section 10 debarred them from being entertained afterwards under any provisions of the Act and paragraph (i) of section 52 could not be invoked in their favour to affect the plaintiff s title under section 54 as a subsequent registered owner and purchaser for value; therefore he was entitled to judgment against them but without prejudice to any rights which their tenants might have.
Semble: Kabba v. Young could not in view of the law in subsection (3) of section 10 he invoked in the defendants' favour.
In interpreting the Registration of Titles Act one should consider the law as it stood before; subsection (3) of section 10 was doubtless intended to provide a remedy for the well-known bane attendant on dealings with family land.
Re Mayfair Property Co. (1898) 2 Ch 28, 35.
Appeal allowed; possession and injunction granted.
Other cases cited:-
Hunt v. Luck (1901) 1 Ch. 45; (1902) 1 Ch. 428, C.A. Barnhart v. Greenshields (1853) 9 M00. P.C. 18.
APPEAL from the High Court of Lagos.
E.A. Peter Thomas for the Appellant.
Isola 14. Olorunnimbe for the first and third Respondents.
A.A. Ajayi, for the second Respondent.
Bairamian, F.J.:-The plaintiff complains against the judgment of Sowemimo, J., which dismissed his claim in the Lagos Suit No. 374 of 1960 for possession of the premises known as No. 36 Coates Street, Ebute Metta, and for an injunction to restrain the defendants from collecting rents.
The house originally belonged to one Lawani and devolved on his death as family property. In 1955 Sanusi Lawani and Saminu Salami (the 1st defendant) borrowed £270 without interest from someone on a mortgage of the house, describing themselves as the fee simple owners; and on the 8th July 1958, the house was sold by auction under a court order. Alhaji Fashola bought it for £550 and had himself registered as the proprietor under the Registration of Titles Act of 1935; his Land Certificate is No. MI00799, and the date of registration is 12th December, 1958; it is transferred to the plaintiff under date the 6th May, 1959, for, £922-9-Od and that forms the basis of the plaintiff's claim.
At the date of the auction 1st defendant has in possession of the house-that is on the 8th July, 1958. On the 11th July Mrs Yewande gave Raliatu Abeke, the 2nd defendant a Receipt for £310 "for No. 36 Coates Street, Ebute Metta. The land is (25x75)." The defence evidence is that it relates to seven rooms at the back, the six in front remaining in the possession of the 1st defendant; she lives in one room and has tenants in the other six and the 1st defendant lives in one room and has tenants in the other five. The trial Judge is satisfied that when Fashola bought, he knew about the possession, and that when the plaintiff bought from him, the plaintiff also knew of the possession being in the defendants.
The judgment poses the question in these words:-
"What has to be decided, however, is whether the finding that the property became family property on the death of Lawani has anything to do with the title of the plaintiff. If it has no effect on the title of the plaintiff in this case, does it give the plaintiff the right to possession in this case?
The judgment goes on to refer to section 10, subsections (1) and (3) of the Act, which leads to the conclusion that:-"It is not open to this Court or the Registrar for that matter to re-open the question",
Viz. that the premises are family land, but the learned Judge is of opinion that the provision in section 10(3) is subject to section 61, on the effect of which, however, there being no application to rectify the register, he refrains from saving more. He goes on to note that although the plaintiff is covered by section 53(2), as a subsequent registered owner who is a purchaser for value, he is caught in section 52(i), which provides that:-
"All registered land shall be deemed to be subject to such of the following overriding interests as may be for the time being subsisting in reference thereto, and such estates shall not be treated as incumbrances within the meaning of this Ordinance:-
(i) the rights of every person in possession or actual occupation of the land to which he may be entitled in right of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed."
Both the plaintiff and his vendor (says the judgment) knew that the defendants were in possession, but the plaintiff did not ask them what their interests were before he bought, and they must be regarded as overriding interests; and on the authority of Kabba v. Young, 10 W.A.C.A., 135, the learned Judge held that whilst the plaintiff held the legal estate as per his land certificate, his title was subject to section 52(i), and his claims failed.
Ground No. 5 of the grounds of appeal (for the sake of which the above summary is give, without regard to other grounds) com plains that:-
"The learned trial Judge misapplied the decision in Kabba and another v. D.S. Young as (instead of "in the" given in the record) under the Registration of Titles Ordinance, the estate of a subsequent registered owner of land, being a purchaser for value, is free from the interests of anyone in possession or occupation of land and the present case is not within Kabba and another v. I).S. Young."
That case mentions various cases, including Hunt v. Luck, , 1Ch. 45; , 1 Ch. 428, C. A., which relies partly on Barnhart v. Greernshields, 9 Moo. P.C., and partly on another case for these rules (approved on appeal):-
"(1) A tenant's occupation is notice of all that tenant's rights, but not of his lessor's title or rights; (2) actual knowledge that the rents are paid by the tenants to some person whose receipt is inconsistent with the title of the vendor is notice of that person's rights."
The provision in section 52(i) was doubtless intended to in corporate those rules, and it will be assumed that it does; but it is trite that the ambit of a provision cannot he determined in isolation: it can only be determined in light of other provisions in the Act, and the question here is the impact of section 10 on paragraph (i) of section 52.
Section 10 provides as follows:-
"(1) If any person opposing an application for first registration claims and proves to the registrar that the land is family land under native law and custom, the registrar shall, unless the family should consent to registration, dismiss the application.
(2) If any person opposing an application for first registration claims and proves to the registrar that the land, although not family land, is subject to native law and custom and that in virtue of such native law and custom he has rights or interests, contingent or otherwise, in respect of the land, the registrar may in his discretion either--
(a) dismiss the application; or
(b) register the applicant as the owner of the fee simple estate in the land or of a lease of the land, as the case may be; and
(i) in the event of agreement between the applicant and the person opposing the application register such cautions or restrictions or other notices, notes or entries, if any, as may be necessary to give effect to such agreement; or
(ii) in default of such agreement protect the rights and interests of the person opposing the application by the registration of such cautions or restrictions or other notices, notes or entries as he may direct under paragraph (h) of subsection (2) of section 11.
(3) Subject to any cautions or restrictions or other notices, notes or entries which the registrar may direct under subsection (2) of this section and paragraph (b) of subsection (2) of section 11, any claim which might have been put forward by any person under either of the preceding subsections in opposition to an application for first registration shall not after such registration be entertained under any of the provisions of this Ordinance."
The defendants did not take any, steps under subsection (1) or (2) in opposition to Fashola's application for first registration; and any claim which they might have put forward under either subsection in opposition to such registration "shall not after such registration be entertained under any of the provisions of this Ordinance." That bar extends to paragraph (i) of section 52.
The defence of the 1st defendant (as also of the 3rd) is that the house is the family property of Lawani's descendants, and the plaintiff could not have validly purchased any legal interest in the house; and the 1st defendant claims that he is in possession of the front rooms as family property. Those defendants should have opposed the application for first registration on their claim that the land was family land; but they did not.
The defence of the 2nd defendant is that the back portion was sold and conveyed to her by Mrs Christiana Yewande as the head of the family on the 11th July, 1958 (the date of her receipt) where upon she went into possession. Sales on receipts are made under native law and custom. Whether a sale by Mrs Yewande confer red any rights, there is no need to consider; for it is conceded by learned Counsel for the 2nd defendant that she should have opposed the application for first registration under subsection (2).
The argument for the defendants is that the bar in subsection (3) does not relate to questions of possession under section 52(i) but to applications, meaning presumably applications for some thing connected with registration.
The judgment under appeal implies rather that an application could have been made to rectify the register under section 61. Whether such an application could be entertained, does not arise for consideration here. What has to be decided is whether there is any reason why the embargo in subsection (3) of section 10 should not be given the full effect of the wording in which it is enjoined.
No reason has been given why it should not be; and in my view there is a cogent reason why it should be given its full effect. In the words of Lindley, M.R., in Re Mayfair Property Co., (1898), 2Ch. 28, 35:-
"In order properly to interpret any statute it is as necessary now as it was when Lord Coke reported Heydon's case to consider how the law stood when the statute to be construed was passed. What the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief."
The courts are familiar with the bane which attends dealings in family land; some members sell or mortgage-as did two of them in this case-and take the money, and others come along-as one of them does now-and repudiate the transaction on the ground that the consent of the family had not been given. In addition sales other receipts under native law and custom add to the bedevilment of dealings in land. The Land Registration Act of 1925 provides for the registration of instruments affecting land; hut although the purchaser is protected against unregistered assurances, as registration does not cure defects, there is no telling whether a registered assurance is valid. Section 10(3) of the Registration of Titles Act, 1935 must have been intended to remove that bane by freeing the first registration of title from claims of the sort which could have been made under subsection (1) or (2). The present case illustrates that bane well. If the defendants' claim could prevail over the plaintiff's registered title, the mischief would continue unabated, and the Registration of Titles Act would have achieved nothing in regard to that familiar mischief; which is a cogent reason for giving full effect to the provision of subsection (3), and excluding from the ambit of section 52(i) rights which are based on a claim which could have been put forward under subsection (1) or (2) of section 10 in opposition to the application for the first registration of title. The wording of section 52(i) is:-
"the rights of every person in possession or actual occupation of the land to which he may be entitled in right of such possession or occupation";
In my view a person in possession is not entitled to any benefit "in right of such possession" when his rights are based on such a claim as aforesaid: for the claim cannot he entertained, and any rights based on it are consequently unenforceable.
It has been suggested that the above view of the law might, or would, work hardship and perhaps injustice in some cases, particularly where illiterates are concerned: they might not come to know of an application having been made for first registration of a family property, so as to assert their rights before the Registrar of Titles in time.
The Registrar has a duty under section 8 of the Act to investigate the title, and when an application is made for first registration he has to advertise the application at least once in the Gazette and, if he thinks fit, in one or more of the newspapers circulating in Nigeria. Then comes subsection (3) which provides that:-
"Notice of every application for first registration shall be served on such persons, if any, as the Registrar may direct, and, unless the Registrar otherwise orders, on each occupier of the land and on all the owners of the adjoining lands."
There was no evidence in the present suit whether or not subsection (3) was complied with, but that was not a matter in issue, and one must assume that notices were served on the persons in occupation of the house, unless of course, the Registrar otherwise directed. In this regard it is worth noting that in 1959 Christiana Yewande brought an action against Alhaji Fashola and the Registrar of Titles, and that the Registrar of Titles was struck out from the suit on the 27th July, 1959; from which it is not unreasonable to infer that there were no allegations made against him. There can be no doubt that the family knew all about the auction sale of the 8th July, 1958, at which Alhaji Fashola bought the house; for in the present suit Alhaji Fashola put in a copy of the judgment in Suit No. 240/1958 brought by Ganiyu Lasisi and another against him, saying that it was about the house in dispute. Ganiyu Lasisi is a descendent of the original owner, Lawani; Ganiyu was in 1958 about eight years old; it is not known who the other plaintiff was, but it is not unreasonable to infer that the solicitors were instructed to bring the suit by members of the family. The odd thing that happened to that suit was this: when it came on before the court on the 20th March, 1959, Counsel for the plaintiffs appeared hut they did not, so it was dismissed: but it does not appear that anything was done to have that suit revived. The point is clear, that in 1958 the family, knowing about the purchase of Alhaji Fashola, could have taken steps to present his being registered as the owner. They brought suit No. 240 of 1958, which had the effect of preventing Alhaji Faslloa from doing anything about taking possession, at any rate until after the suit was over. It was after the suit was concluded that he sold to the present plaintiff, namely on the 1st May, 1959; the registration was transferred to the present plaintiff on the 6th May, 1959; it was afterwards that Christiana Yewande brought her action against Alhaji Fashola and the Registrar of Titles, and the present plaintiff knew about that action; he gave evidence in the case. That again no doubt had the effect of preventing the present plaintiff from doing anything about taking possession of the house; it was after the case was concluded in 1960 that the plaintiff brought his action; it was on the 19th October, 1960. I have given these facts because of the bearing they have on the argument that illiterates might be prejudiced; they serve also to explain how it was that neither Fashola nor the plaintiff did anything about possession, and how it was that both knew about others being in occupation of the premises - but it is worth noting that Alhaji Fashola, who bought for £550 in July 1958, sold to the present plaintiff for £992-9s-0d on the 1st May, 1959, and that at that time he had in his hands the judgment dismissing suit No. 24011958.
Looking through the Act of 1935, I find this provision in section 43(2): "Any person claiming that any land:-
(a) is family land under native law and custom; or
(b) although not family land, is subject to native law and custom and that in virtue of such native law and custom he has rights or interests, contingent or otherwise, in respect of the land, may lodge with the registrar a caution against the first registration of the land or lease without notice to the cautioner."
Subsection (3) is not needed here; subsection (4) provides that:-
"So long as any caution is subsisting, the land or lease shall not be registered without the consent of the cautioner until he has been given an opportunity of being heard on the application for first registration."
Those provisions could have been used but the defendants to freeze for a while Alhaji Fashola's application for first registration; they were not used; neither did the defendants apply for registration in their own name. It seems to me that persons who do not avail themselves of the means of protection provided by the Act cannot rightfully complain of hardship. There is the other side of the picture: although the Act does not, except in the cases mentioned in section 5, compel anyone to register his estate or prevent unregistered dealings with land, it confers an overriding force on registered dispositions for valuable considerations:-
"A registered owner of any land or charge, being a purchaser for value, is not affected by notice, whether express or implied, of any unregistered estate, interest or claim affecting the estate of any previous registered owner, or concerned to inquire whether the terms of any caution or restriction so far as they relate to the time prior to the registration of himself as owner of such land or charge, have been complied with"
That completely meets the defence of the 1st and the 3rd defendants that the house is family property, and that the plaintiff could not have validly purchased any legal interest in the house; also the defence of the 2nd defendant that she bought a portion of the house from the head of the family It is in virtue of her purchase that the 2nd defendant, as she alleges in her defence, went into possession; and it is in virtue of its being family property- that the 1st defendant alleges he is in possession of the front portion of the house; but neither of such estates affects the plaintiff, and if the defendants could be heard to claim, under section 52(i) of the Act, that they have an overriding right of possession by virtue of such estates, section 54 would fail of its purpose.
I am in no doubt that section 52(i) was not intended to afford any protection to persons like the defendants who did not use any of the methods provided by the act for their protection, and nullify both the protection of section 54 and the express language of section 10(3) The judgment under appeal seems to be based on the view that if the purchaser omits to ask the person in possession what his rights are before he buys the land, later he can neither a what they are nor challenge their validity or extent, as if the omission had the effect of enhancing that person's interest into an absolute estate in possession, or of conferring on him such an estate The true position is that the purchaser must give effect to those rights whatever they are, and their nature and validity are matters for investigation the alleged rights may return out to he such as cannot be entertained-which is the case here, so far as the defendants are concerned This judgment is not concerned with the rights which their tenants may be entitled to I would allow the appeal and order that:-
The judgment in the Lagos High Court Suit No. 374 of 1960 dated the 29th May, 1961, is hereby set aside and replaced by judgment for the plaintiffs granting him against the defendants possession of the land with the buildings and appurtenances thereon situate at and known as No. 36 Coates Street, Ebute Metta, in the mainland of the Federal Territory of Lagos and an injunction restraining the defendants, their servants and/or agents from collecting any rents from the aforesaid property, with costs of appeal assessed at forty-eight guineas and with costs in the court below assessed at seventy two guineas.
BRETT, F.J.:- I concur.
TAYLOR, F.J.:- I concur.